People v. Johnson , 475 N.Y.S.2d 942 ( 1984 )

Doerr, J. (dissenting).

I respectfully disagree with the conclusion reached by the majority and would reverse the conviction. 11 To establish accessorial liability for murder in the second degree where one other than defendant carried out the killing, the People must establish that defendant acted with the mental culpability required for the commission of the crime (Penal Law, § 20.00). This the People failed to do. 11 The most that has been established is that defendant was present with codefendant James Pittman when the latter fired a shot and killed a patron exiting from a bar where Pittman had had an altercation on the previous evening. The victim had not been in the bar the night before. Defendant had been present, but had taken no active part in the altercation. 11 The murder count charged requires the specific inten t to cause death (Penal Law, § 125.25, subd 1). Although intent may be proven by circumstantial evidence (People v Ozarowski, 38 NY2d 481, 489), such evidence must exclude to a moral certainty every reasonable hypothesis of innocence (People v Way, 59 NY2d 361, 365). It is essential, therefore, that the proof fairly establish defendant’s intent to kill and exclude any other purpose he had in going to the scene with Pittman (People v Monaco, 14 NY2d 43). “An aider and abettor must share the intent or purpose of the principal actor, and there can be no partnership in an act where there is no community of purpose” (1 Burdick, Law of Crime, § 221, p 297; see, also, People v La Belle, 18 NY2d 405, 412; People v Bray, 99 AD2d 470). 11 In the case at bar, the circumstantial evidence is equivocal. One shot was fired from across the street when a bar patron emerged from the doorway. It is entirely possible that defendant accompanied his friend for the purpose of threatening bar patrons or seeking revenge on those who had harassed them the night before. It is entirely speculative, however, to conclude that defendant had the specific intent to shoot the first white person who stepped out of the bar. Mere presence at the scene of a crime with knowledge of its perpetration does not render the observer accessorially liable therefor (People v La Belle, supra; People v Slaughter, 83 AD2d 857, affd 56 NY2d 993). (Appeal from judgment of Erie County Court, Wolfgang, J. — murder, second degree.) Present — Dillon, P. J., Callahan, Doerr, Green and Moule, JJ.